Revue - Les Cahiers de l'Arbitrage N°1-2023 - 71

DOCTRINES - DÉBATS
It is true that, in relation to commercial arbitration, the Court has held that the
requirements of efficient arbitration proceedings justify the review of arbitral
awards by the courts of the Member States being limited in scope, provided
that the fundamental provisions of EU law can be examined in the course of
that review and, if necessary, be the subject of a reference to the Court for a
preliminary ruling. ...
[A]rbitration proceedings such as those referred to in ... the BIT are different
from commercial arbitration proceedings. While the latter originate in the
freely expressed wishes of the parties, the former derive from a treaty by which
Member States agree to remove from the jurisdiction of their own courts,
and hence from the system of judicial remedies which the ... TEU requires
them to establish in the fields covered by EU law ... . In those circumstances,
the considerations set out in the preceding paragraph relating to commercial
arbitration cannot be applied to arbitration proceedings such as those referred
to in ... the BIT. 45
(d) The Komstroy and PL Holdings Judgments
An open question following Achmea was its potential application to disputes
under the ECT, a question that arose because the CJEU had carved out in Achmea,
not only commercial arbitral awards, but also awards rendered pursuant to
investment agreements entered into by the EU itself, 46
as in the case of the ECT.
The CJEU wasted little time in dispelling that notion. Reaching out to opine on a
case between a national of Ukraine and the Republic of Moldova, in which neither
country in fact was an EU Member State and the agreement was accordingly not
an intra-EU BIT, the Court nevertheless ruled in the case of Republic of Moldova v.
Komstroy that Achmea applied not only to intra-EU BITs, but to intra-EU disputes
arising under the ECT as well.
[D]espite the multilateral nature of the international agreement of which it forms
part, a [treaty providing for the arbitration of investment disputes] is intended,
in reality, to govern bilateral relations between two of the Contracting Parties,
in an analogous way to the provision of the bilateral investment treaty at issue
in ... Achmea.
It follows that, although the ECT may require Member States to comply with the
arbitral mechanisms for which it provides in their relations with investors from
third States who are also Contracting Parties to that treaty as regards investments
made by the latter in those Member States, preservation of the autonomy and of
the particular nature of EU law precludes the same obligations under the ECT
from being imposed on Member States as between themselves.
45. Achmea, supra note 34, ¶¶ 54-55.
46. Id. ¶ 57 ( " [A]ccording to settled case-law of the Court, an international agreement providing
for the establishment of a court responsible for the interpretation of its provisions and whose decisions
are binding on the institutions, including the Court of Justice, is not in principle incompatible with
EU law. The competence of the EU in the field of international relations and its capacity to conclude
international agreements necessarily entail the power to submit to the decisions of a court which
is created or designated by such agreements as regards the interpretation and application of their
provisions, provided that the autonomy of the EU and its legal order is respected " ).
Les Cahiers de l'Arbitrage 2023‑1
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Revue - Les Cahiers de l'Arbitrage N°1-2023

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